Citation Nr: 9922607
Decision Date: 08/11/99 Archive Date: 08/24/99
DOCKET NO. 98-13 782A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los
Angeles, California
THE ISSUE
Entitlement to waiver of recovery of nonservice-connected
death pension overpayment in the amount of $6,993.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
T. L. Douglas, Associate Counsel
INTRODUCTION
The veteran served on active duty from March 1948 to March
1952, March 1953 to April 1956, and from April 1956 to
October 1960.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an August 1997 rating decision by the
Committee on Waivers and Compromises (COWC) at the Los
Angeles, California, Regional Office (RO) of the Department
of Veterans Affairs (VA).
REMAND
Review of the record indicates the appellant has submitted
correspondence challenging the propriety of the overpayment
created. In March 1991 she also reported unreimbursed
medical expenses. Subsequently, in January 1998, the
appellant's representative requested an audit; however, there
is no indication in the record that this audit was
accomplished. Therefore, the Board finds the case must be
remanded for additional development.
The United States Court of Appeals for Veterans Claims
(Court) has held that when the validity of a debt is
challenged, a threshold determination must be made on that
question prior to a decision on waiver of indebtedness. See
Schaper v. Derwinski, 1 Vet. App. 430, 434 (1991). A debtor
may dispute the amount or existence of a debt, which is a
right that may be exercised separately from a request for
waiver or at the same time. See 38 C.F.R. § 1.911(c)(1)
(1998); see also VAOPGCPREC 6-98 (O.G.C. Prec. 6-98).
Generally, if further evidence or clarification of the
evidence or correction of a procedural defect is essential
for a proper appellate decision, the Board shall remand the
case to the agency of original jurisdiction, specifying the
action to be undertaken. 38 C.F.R. § 19.9 (1998).
Accordingly, the case is remanded to the RO for the
following:
1. The RO should adjudicate the issue of
whether the nonservice-connected death
pension overpayment was properly created,
including adjustments for unreimbursed
medical expenses. The appellant should
be allowed the requisite period of time
for a response.
2. Thereafter, if an overpayment is
found to have been properly created, the
appellant should be allowed an
opportunity to submit additional evidence
pertinent to her request for waiver of
recovery of nonservice-connected death
pension overpayment.
3. The RO should then review the claims
file to ensure that the above requested
development has been completed in full.
If not, the RO should implement
corrective procedures. Stegall v. West,
11 Vet. App. 268 (1998).
4. After the action requested above has
been completed to the extent possible, as
well as any other action deemed
necessary, the RO should review the
record and re-adjudicate the issue on
appeal.
If any benefit sought, for which a timely notice of
disagreement was filed, is not granted to the appellant's
satisfaction, the RO should issue a supplemental statement of
the case. A reasonable period of time for a response should
be afforded. Thereafter, the case should be returned to the
Board for final appellate review, if otherwise in order. By
this remand, the Board intimates no opinion as to any final
outcome warranted. No action is required of the appellant
until notified by the RO.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
THOMAS J. DANNAHER
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991 & Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).